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DIGITAL MILLENNIUM
Since the emergence of the digital era, the use of technology in the classroom has become increasingly pervasive,' and the virtues of such uses have been quite widely felt.^ Section 1201 of the Digital Millennium Copyright Act^ (DMCA) generally prohibits the circumvention of technological access controls, which have the effect of limiting the degree to which educators and students may make fair uses of copyrighted works. That same section includes a provision granting the Librarian of Congress the authority to exempt users who "are, or arelikely to be in the succeeding three-year period, adversely affected. . . in their ability to make noninfringing uses . . . of a particular class of copyrighted works."'* Recently, the Librarian of Congress accepted the recommendation of the Register of Copyrights to issue a rule that exempts university professors and film students from the DMCA's anticircumvention provisions when they override access controls^ on DVDs with the reasonable belief that such actions are necessary to further pedagogical goals. However, the Register of Copyrights ignored evidence of the benefits of extending the exemption to other university students, to K-12 teachers and students, and to other media beyond motion pictures on DVDs. By adopting the Register's recommendation, the Librarian crafted a rule that leaves many of the very users whom Congress intended to protect without the ability to exercise their fair use rights. Following the technological "arms race" of the 1980s and the rapid development of the internet in the 1990s, media companies petitioned the government for augmented legal protection against enterprising individuals who circumvented access controls on DVDs and engaged in the widespread copying and dissemination of these companies' prized works.' In response. Congress amended the Copyright Act of 1976^ by enacting the DMCA in 1998. The DMCA carries a series of anticircumvention measures, the most relevant of which is § i20i(a)(i). This provision explicitly prohibits the circumvention of any "technological measure that effectively controls access" to a protected work.^ In order to preserve the public's ability to engage in fair uses of copyrighted materials. Congress initially identified seven classes of uses that would be free from DMCA liability. However, acknowledging the limitations of its forecasting ability. Congress incorporated within 1201 a "fail-safe mechanism." This mechanism prescribes triennial rulemaking proceedings whereby the Librarian of Congress — upon the recommendations of the Register of Copyrights and the National Telecommunications and Information Administration (NTIA) of the Department of Commerce balances the benefits and harms of granting exemptions to other proposed classes, Subsection i20i(a)(i)© of the DMCA directs the Librarian to examine four primary factors in the course of a rulemaking: (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; and (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works. The 1201 rulemaking in 2006 was the first to establish an educational exception to the DMCA's anticircumvention provisions.'^ A group of film professors initially proposed an exemption for professors of film and media studies.'' Proponents of the proposed class argued that possible alternatives to circumvention, such as using VHS cassettes, recording with a digital video recorder, or playing individual DVDs in succession to showcase clips, were inadequate to satisfy the particular pedagogical purposes of film professors. ^^ They further contended that the proposed exemption would have little to no effect on the market for copyrighted audiovisual works and would therefore be properly tailored to minimize adverse consequences to copyright holders.*' Finding these reasons persuasive, the Register concluded that all of the § i20i(a)(i)© factors weighed in favor of exempting "audiovisual works included in the educational library of a college or university's film or media studies department. . . used in the classroom by media studies or film professors. The imposition of a reasonableness standard as a way to distinguish lawful from unlawful circumvention makes these distinctions all the more untenable. Even if one were to assume that the standard is effective in decreasing the frequency of illegal circumvention, the rule would still apply only to college professors and film students. This classification presumes that these individuals are unique in their ability to exercise discretion carefully and determine when circumvention of access controls is actually necessary. However, there is little evidence that non-film students or K-12 teachers would be less able to make such determinations. In light of these realities, the newly created standard seems arbitrary at best. Copyright © 2011 by The Harvard Law Review Association. Categoría:Libros digitales